Arizona's public health agency is invoking a sensational rape case at a Phoenix long-term health care facility in order to avoid making public the names of nursing homes hit by the coronavirus.
Hacienda HealthCare’s business suffered after news reports two years ago that a nurse was charged with raping and impregnating a developmentally disabled resident, according to Colby Bower, an assistant director at the Arizona Department of Health Services who oversees public records requests.
In a court filing Friday, Bower said the same thing could happen to Arizona long-term care facilities if a judge requires DHS to disclose the names of facilities with COVID-19 outbreaks.
“The department does not seek to protect bad actors or facilities that provide inadequate care,” he said. “However, the department must balance this against the privacy and public health concerns.”
“These issues threatened (Hacienda’s) ongoing viability,” Bower added.
Bower’s statement was part of DHS’ response to a lawsuit filed May 5 by 12 News, the Arizona Republic and other media organizations in Maricopa County Superior Court.
The media organizations are seeking the names of long-term care homes with a confirmed resident or staff case of coronavirus, as well as the number of coronavirus cases at the facility and related deaths.
The lawsuit was filed after DHS refused to comply with public records requests seeking the information.
Long-term care facilities in Arizona and nationwide are a deadly hotspot for COVID-19.
According to Maricopa County’s Public Health Department:
- Through Saturday, 1,101 coronavirus cases have been reported among residents or staff in 159 long-term care facilities.
- Twenty percent of those infected - 215 residents and two staff members - have died.
- Seven of every 10 deaths countywide are at long-term care facilities.
Journalists have reported on the pandemic’s outbreak in specific care homes with information provided largely by residents’ family members.
Reporters have uncovered double-digit cases and deaths at several facilities.
Bower revealed there is “at least one congregate setting where nearly 100% of the patient population has tested positive for COVID-19.”
Health Services Director Dr. Cara Christ provided several rationales over the last few weeks for refusing to disclose the information: federal law, state law, and finally declaring that only a judge could force her to reveal the facilities’ names.
The Hacienda defense is a new one.
Two years ago, a whistleblower told the media that a developmentally disabled patient at Hacienda had given birth, without anyone knowing she was pregnant.
Days later, Phoenix police arrested a Hacienda nurse on rape charges.
The woman gave birth to a healthy baby. The patient and her family have sued Hacienda and two of her doctors.
Bower described the impact on Hacienda: “...Significant turnover and safety threats as a result of the negative publicity surrounding the facility.”
An executive order by Gov. Doug Ducey protects health care facilities and their workers from lawsuits related to COVID-19 care, except in cases of gross negligence.
DHS lawyers contend the COVID-19 information is protected by state law and might result in patients’ identities being released.
They are asking the court to toss out the lawsuit.
“The department’s concerns that disclosure of the records at issue interferes with peace and privacy or causes more harm than any good disclosure could provide, are not mythical,” the DHS response says. “These concerns are real and supported by empirical experience and data.”
The media lawsuit doesn’t seek the names of patients. An attorney for the media outlets has said steps could be taken to protect identities if needed.
Another Ducey executive order requires care homes to report data on coronavirus cases at their facility to residents, families and prospective residents. But the order bars them from sharing that information.
Other states have taken steps to reveal the names of nursing homes where outbreaks have occurred.
Federal health officials are planning to identify long-term care homes licensed by the Centers for Medicare and Medicaid Services. The information could be released by the end of May.